If you’re a business owner, you are already learning how important Website Accessibility is to your business. But what most California business owners don’t know is that the costs of losing a website accessibility lawsuit in California are higher than in other states. Given that the ADA is a Federal Law, how could that be? The short answer is that California has its own laws that are similar to the ADA, and they carry their own fines and penalties.
Why Do Websites Need To Be ADA Compliant?
The ADA was enacted in 1990 and established that, among other things, businesses cannot discriminate against anyone on the basis of a disability. Among other things, that means businesses must…- Remove physical barriers by providing wide doorways, ramps alongside steps, and elevators.
- Adding accessibility features, such as rails in bathrooms, lower restroom mirrors, and lower countertops and displays.
- Make special adaptations for the blind, such as directional signs in braille
The Costs Of Losing a Website Accessibility Lawsuit
The penalties under the ADA were adjusted for inflation in 2014, and while private parties cannot collect these penalties, the Federal Government can. Potential penalties for a first violation are now a maximum of $75,000, with subsequent violations carrying maximum penalties of $150,000.
According to Burnham Nationwide, a firm specializing in code compliance, “…a private party may receive equitable relief, such as a court order requiring a business to remove a barrier or provide auxiliary aids, but cannot be awarded financial damages as a result of their ADA Title III lawsuit. However, the federal law does allow a court to award reasonable attorney’s fees if the private party wins the lawsuit. “
And while technically the only financial compensation a plaintiff can receive are Attorneys fees if they win, these fees are often substantial and far more than the defendant usually expects. In fact, the professional plaintiffs that are looking for websites like yours to sue, are often attorneys that charge upwards of $500 per hour. Multiply that by several attorneys and paralegals burning hours on your case and you can see how the attorneys’ costs for the plaintiffs can amount to many tens of thousands of dollars.
But there are other costs of losing a website accessibility lawsuit as well. In particular, the plaintiff may sue for some or all of the following non-monetary awards:
- Injunctive Relief — which means to stop discriminating against those with disabilities by fixing your website.
- Draft and adopt a Website Accessibility Policy
- Initiate Training on Accessible Design for all website technical staff
- General Staff training on Accessibility
- Conducting regular testing, both automated and via user groups
If you imagine for a moment the outright cost of implementing that list, and then also think about the disruption to your business while you and your staff spend time on this, the costs add up to several tens of thousands of dollars more.
And while this is all going on, you are not focusing on growing your business.
California’s Unruh Civil Rights Act
The main reason that the costs of losing a website accessibility lawsuit in California are higher than in other parts of the country are because of California’s own civil rights laws. California passed the (Jesse) Unruh Civil Rights Act in 1959 to prevent discrimination on the basis of race, sex, disability, marital status, religion, ancestry, national origin and other protected statuses. And while the ADA Title III itself prevents plaintiffs from receiving financial compensation, the Unruh Act does not. In fact, the Unruh act specifically provides for financial compensation.
Among the damages provided for by the Unruh Act are…
- Damages for emotional distress
- General damages
- Special damages
- Injunctive relief
- Cease and desist orders
- Out-of-pocket expenses
- Attorney’s fees
The Unruh act also allows for “treble damages,” which is a tripling of actual damages. But even if there are no actual damages, the statute also allows for a minimum of $4,000 per violation, as well as punitive damages and attorneys fees.
Treble and Statutory Damages
And while $4,000 doesn’t sound like an excessive amount of money, remember that is “per violation”. For a physical facility, a violation might be interpreted as each attempt to enter a building. Similarly, for a website a violation may be interpreted as each visit to the website. But a violation may also be interpreted as each page of a website the plaintiff attempts to access but cannot, as well as each specific issue that prevents the plaintiff from performing one function.
For example, one violation may be due to the lack of color contrast between foreground text and background colors. Another might be due to the fact that the website’s menu is not navigable with the keyboard only. And a third may be that a form requesting information from the business is not keyboard accessible. This list can be quite large, resulting in statutory damages under the Unruh Civil Rights Act amounting to $100,000 or more. (Read more: Top 10 Website Accessibility Issues)
And if you’re being sued for statutory damages like the ones listed above, you can be sure that your own attorneys fees might also run into the many tens or hundreds of thousands of dollars.
How Risky Is Your Business?
Here in California, mostly because of the Unruh Civil Rights Act, without even being formally sued, the costs of receiving a demand letter from a professional plaintiff can approach $25,000 to $50,000 very quickly. And the costs skyrocket quickly the moment you hire your own attorney and divert your own attention away from growing your business to instead defend it.
The costs of losing a website accessibility lawsuit in California are higher than elsewhere in the country. That said, every business owner accepts reasonable risks in order to grow the business. But smart business owners also work hard to avoid risks. Let us help you avoid the risks of a website accessibility lawsuit.
Our Website ADA Compliance Service can help you not only serve more people, but to also comply with the law and reduce the risk of legal issues, both from the government and from private individuals and professional plaintiffs. Contact Us online to discuss your website’s potential exposure to a website ADA threat, or call our office at 818-592-6370.